The meaning and criteria for determining “sexual abuse” prohibited under the former Child Welfare Act / Where the victimized child exercises his/her right to sexual self-determination or lacks his/her ability to protect himself/herself, whether it can be readily concluded that the victimized child does not constitute sexual abuse solely on the ground that the perpetrator did not express his/her explicit opposition to the request or did not feel physical or mental suffering due to the perpetrator’s act (negative)

In full view of the legislative purpose of the former Child Welfare Act (wholly amended by Act No. 11002, Aug. 4, 201; hereinafter the same) (Article 1), basic ideology (Article 3(2) and subparagraph 4 of Article 2, and Article 29 subparag. 2 of the same Act, sexual abuse prohibited under the former Child Welfare Act refers to sexual harassment, sexual assault, etc. that causes a child as a sense of sexual shame, which may injure a child’s health and welfare, or impede normal development, and whether it constitutes such act ought to be objectively determined in accordance with sound social norms in the age, comprehensively taking into account the following circumstances: (a) an offender and victimized child’s intent, gender, and age; (b) whether the victimized child has the ability to properly exercise his/her right to sexual self-determination; (c) whether the victimized child has sexual values and ability to determine; (d) relationship between the offender and victimized child; (c) circumstances leading to the act; and (c) the specific form of act; and (c) influence of the victimized child’s mental development and health.

Meanwhile, in cases where a victimized child is unable to sufficiently form sexual values and judgment ability, and where the victimized child exercises his/her right to sexual self-determination or is considerably lacking in the ability to protect himself/herself, it is difficult to expect that he/she voluntarily and seriously exercise the right to self-determination on his/her sexual act, and even in cases where there are circumstances such as the victimized child’s failure to express his/her objection or the victimized child’s physical or mental suffering from his/her act, such circumstance alone does not readily conclude that sexual harassment, etc. against the victimized child does not constitute “sexual abuse” under Article 29 subparag. 2 of the former Child Welfare Act

Articles 1, 2 subparag. 4 (see current Article 3 subparag. 7), 3(2) (see current Article 2(2)), 3(3) (see current Article 2(3)), 29 subparag. 2 (see current Article 17 subparag. 2), and 40 subparag. 2 (see current Article 71(1)1-2) of the former Child Welfare Act (Amended by Act No. 11002, Aug. 4, 201);

Defendant

Military prosecutor;

Attorney converted Domination

High Court for Armed Forces Decision 2013No32 Decided June 25, 2013

The judgment below is reversed, and the case is remanded to the High Military Court.

The grounds of appeal are examined.

1. As to the violation of the former Child Welfare Act due to the “act of having a child engage in drinking.”

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court was justifiable to have rendered a not-guilty verdict on the violation of the former Child Welfare Act (wholly amended by Act No. 11002, Aug. 4, 201; hereinafter the same shall apply) due to the “act of having a child engage in drinking,” among the facts charged in the instant case, on the grounds as indicated in its reasoning, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the interpretation and application of Article 29 subparag. 6 of the former Child Welfare Act.

2. As to the violation of the former Child Welfare Act due to “an abuse of sexual harassment, etc. that causes a sense of sexual humiliation to a child”

A. Article 1 of the former Child Welfare Act provides that “The purpose of this Act is to guarantee the welfare of a child so that the child can grow up healthy and happyly and safely,” and Article 3 of the same Act provides that “The child shall grow up happyly in a stable family environment for the development of perfect and harmonious personality (Paragraph 2). In all activities related to the child, the interest of the child shall be first considered (Paragraph 3).” Meanwhile, Article 2 Subparag. 4 provides that “child abuse means a child’s act of physical, mental, sexual or cruel violence or cruel treatment that may harm the child’s health and welfare or interfere with the normal development of the child, and that no person shall commit sexual harassment, sexual assault, etc. that may cause a sense of sexual humiliation to the child”. Article 29 Subparag. 2 of the same Act provides that “No person shall do so.

In full view of the legislative purpose, basic ideology, and relevant provisions of the former Child Welfare Act, sexual abuse prohibited under the former Child Welfare Act refers to sexual harassment, sexual assault, etc. that causes a sense of sexual shame to a child, which may harm the child’s health and welfare or impede normal development, and whether it constitutes such act is an act, or sexual violence or cruel acts that may hinder the victimized child’s health and welfare. Whether the victimized child has the ability to properly exercise his/her sexual self-determination right, and whether the victimized child has sexual values and judgment ability to the extent that the victimized child is able to properly exercise his/her sexual self-determination right, the relationship between the offender and the victimized child, circumstances leading to the act, specific form of the act, impact on the victimized child’s personality and mental health, etc. In addition, if the victimized child has not sufficiently formed sexual values and judgment ability, and thus, it is difficult to expect that the victimized child’s sexual self-determination right is exercised voluntarily and seriously, or even if the victimized child does not actually cause physical harm to the child or sexual abuse of the child, etc.

B. Examining the reasoning of the lower judgment and the evidence duly admitted and examined by the lower court, the Defendant, who was a soldier at the Army, demanded that “the victim of the fourth-year elementary school (or the age of 10) and the mobile phone that he was aware of through the Internet game be sent to the toilet.” The victim, while holding a video call, showed her fright and panty, or shows her fright off and her part of clothes, while holding the video call. The Defendant, who first called with the victim on July 21, 2012, attempted to communicate with the victim on more than 50 occasions until July 25, 2012 through a voice or Stel, and the victim was aware of the fact that he/she was unable to communicate with the victim through the said video call during the said period, and the victim was also aware of the victim’s intent to stop the phone call through the video call and the video call during the said period. Meanwhile, the victim, during the said period, the victim was also aware of the fact that he/she was aware of the victim’s intent and the video call.

Examining the above facts in light of the legal principles as seen earlier, the victim who is only ten years of age is unable to exercise his/her right to sexual self-determination due to the failure to sufficiently form his/her sexual values and judgment ability, and the ability to protect himself/herself is considerably weak. However, the defendant repeated the defendant's demand to show fluence while holding a video call with the intent to obtain his/her sexual satisfaction by taking advantage of the victim's sexual integrity and the tendency that the victim could not easily refuse the victim's request. In light of the general public's good sexual morality concept, the defendant's act is deemed to constitute a harsh act that may harm the victim's health and welfare or impede normal development, i.e., sexual abuse, which may hinder the victim's normal development, even if the victim responded to the above request without any special resistance or did not feel physical or mental pain, it is difficult to view that the victim voluntarily and seriously exercised his/her right to sexual self-determination right at that time. Therefore, the defendant's above act does not constitute a sexual abuse act against the victim.

C. Nevertheless, the court below held otherwise that Defendant’s act did not constitute sexual abuse by paying attention to the circumstance that Defendant was unable to inflict physical or mental harm on the victim and the victim did not refuse Defendant’s request. In so doing, the court below erred by misapprehending the legal principles on the meaning and interpretation of “sexual abuse” under Article 29 subparag. 2 of the former Child Welfare Act, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Scope of reversal

Of the judgment below, each part of the violation of the former Child Welfare Act due to “an act of abuse of sexual harassment, etc. that causes a sense of sexual humiliation to children” cannot be relieved of reversal because it is erroneous as seen above. Since this part of the judgment below acquitted the lower court on the ground that the respective violation of the former Child Welfare Act due to “an act of causing a child to engage in sexual humiliation, etc.,” and is in a commercial concurrent relationship with

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)